In a federal white collar criminal case originating out of the Northern District of Florida, the Eleventh Circuit recently reversed a physician’s conviction and 292 month sentence. The case involved a family practice doctor who was charged by the federal government with health care fraud and overprescribing. In essence, the Government’s theory of prosecution under both the health care fraud and overprescribing charges was the same — that the family practice physician had prescribed unnecessary or excessive quantities of controlled substances without a legitimate medical purpose and “outside the usual course of professional practice.”

The charges at issue related to the treatment of twenty of the doctor’s patients and two of those charges alleged that “death resulted” from the use of the controlled substances which the doctor allegedly overprescribed. Although all of the charges were significant, the “death resulting” allegation was especially significant because, as we previously reported here, it can carry a mandatory minimum sentence of 20 years and a number of doctors have received life sentences for those charges.

Like many doctors who face the loss of their livelihood and their liberty, Dr. Ignasiak made the decision to take his case to trial. At the conclusion of the trial, however, the jury returned guilty verdicts on the majority of charges and the judge sentenced the doctor to 292 months.

On appeal, the doctor raised a number of issues. But after describing those issues, the Eleventh Circuit concluded that it only needed to focus primarily on one of those issues because that issue, by itself, required the court to reverse the doctor’s conviction and sentence.

The issue that the doctor successfully raised on appeal involved the manner in which the Government attempted to prove the “death resulting” allegation. In order to prove that allegation at trial, the Government (over the doctor’s objection), introduced copies of autopsy reports and testimony concerning those reports, without calling as witnesses the coroners who actually prepared those reports. Based on some relatively recent authority from the United States Supreme Court, the doctor argued that the admission of this evidence violated his Sixth Amendment right to confront the witnesses against him. And on appeal, the Eleventh Circuit agreed, holding that it could not conclude that the Government proved beyond a reasonable doubt that admitting evidence of five more patients who allegedly died as a result of Ignasiak’s conduct “did not contribute to the verdict obtained.” For these reasons, the Eleventh Circuit reversed the doctor’s conviction and 292 month sentence.

Interestingly, in addition to the issue of whether Dr. Ignasiak’s conviction should be overturned, the Eleventh Circuit also discussed an issue involving criminal conduct committed by the Government’s main expert, Dr. Arthur Jordan. According to the opinion, after Dr. Ignasiak was convicted, the Government filed a Notice with the trial court that for the first time revealed that Dr. Jordan engaged in criminal conduct beginning at an unspecified time up to and continuing until 2006. Specifically, Dr. Jordan had, on nine separate occasions, used a counterfeit badge and his United States Marshal credentials to pose as an on-duty U.S. Marshal in order to carry firearms on commercial airplanes while on personal travel. On the ninth flight, a Transportation and Security Administration (“TSA”) agent discovered Dr. Jordan’s ploy, and seized the weapons, counterfeit badge, and Marshal Service credentials. Instead of prosecuting Dr. Jordan, however, the United States allowed him to enter into a pretrial diversion agreement, although he admittedly committed federal felony offenses.

Before the district court, the Government successfully argued that the Notice it filed regarding Dr. Jordan should remain under seal in order to protect Dr. Jordan’s privacy rights and to prevent potential retaliation against him. Although the district court agreed with this argument, the Eleventh Circuit rejected it, stating that “in this case, the public has a great interest in learning the contents of the Notice-namely, learning the highly material fact that Dr. Jordan, a repeat government expert witness, abused his government authority and committed acts which could have been charged as felonies. To say that the defense would have preferred to use this information to discredit Dr. Jordan’s testimony is almost certainly an understatement.”

For those of you that have the time, I would certainly recommend reading the Eleventh Circuit’s opinion in Ignasiak, which can be found here. Over the last few years, we have seen more and more prosecutions of doctors that prescribe controlled substances and from announcements that we have seen coming out of this and other federal districts, this prosecutorial focus is not likely to end anytime soon. Our previous post on this issue can be found here.